The opinion
LUTTIG, Circuit Judge,
dissenting:
Coach Crute was charged with responsibility over the girls’ track team at Wilson High School in Portsmouth, Virginia. Crute videotaped a female student after hours in a remote and isolated part of the campus, instructed the student to remove her underpants for the camera, and zoomed in on her crotch, moaning and groaning during the encounter. In response to Crute’s actions, the Superintendent, Principal, and Director of Secondary Education took no disciplinary action whatsoever, characterizing Crute’s behavior as “not objectionable.” Unsurprisingly, in the events that give rise to this lawsuit, Crute was thereafter found videotaping, with a hidden camera, female students as they undressed and dressed in the girls’ locker room — conduct for which the plaintiffs now seek to hold the School Board liable under 42 U.S.C. § 1983 .
The majority holds today that no liability under section 1983 lies against the School Board for Crute’s conduct because — and merely because — the School Board formally retains review authority over all individual disciplinary decisions pursuant to state statute. Because the majority’s holding rests on an obviously mistaken understanding of the scope of municipal liability under section 1983, and because a reasonable jury could readily conclude both that the School Board has effectively delegated final policymaking authority over personnel disciplinary decisions to the individual defendants and that *527 those individual officials were deliberately indifferent to the constitutional harm that ultimately befell the plaintiffs, I dissent from the majority’s affirmance of summary judgment for the defendants.
I would unhesitatingly hold, on the facts alleged, that the plaintiffs are entitled to a jury trial on their claim against the School Board that their daughters’ constitutional rights were violated by Crate’s conduct. Indeed, were it my role to do so, I would hold as a matter of law that the officials in question were deliberately indifferent as a result of their inexcusable failure to act in the face of warning signs that would have been obvious to anyone responsible enough to be entrusted with the education and safety of children, and that I suspect were in truth obvious to the individual defendants in this case.
I.
The majority’s error, as I allude to above, is in its apparent failure to recognize that subordinate officials can be final policymakers, even absent a formal delegation of final decisionmaking authority from the principal: That is, the majority mistakenly concludes that a statutorily designated policymaker who retains but pro forma final review authority is, and can be, the only final policymaker for purposes of municipal liability under section 1983. This is simply not the case, however. As both the Fifth and Seventh Circuits have held, a principal decisionmaker’s practice of acquiescence in the decisions of a subordinate can result in municipal liability for the actions of that subordinate, even where, as here, the principal municipal policymaker formally retains final review authority over all decisions by subordinates. See Gros v. City of Grand Prairie, 181 F.3d 613 , 616 n. 2 (5th Cir.1999) (stating that a statutorily designated policymaker’s customary refusal to exercise some theoretical final review authority over a municipal official can establish that official as the final policymaker); Cornfield v. Consolidated High School Dist. No. 230, 991 F.2d 1316, 1325 (7th Cir.1993) (stating that a practice of committing disciplinary matters to the discretion of a subordinate in a school system arguably “could result in the actions of the subordinate, however conducted, being municipal policy as long as the official is acting within the scope of his or her employment”). To my knowledge, no circuit has held otherwise. Certainly, ours has not. We have long held, as have the Fifth and Seventh Circuits, that municipal liability can lie where final decisionmaking authority effectively resides in the municipality’s subordinate officials. See, e.g., Austin v. Paramount Parks, Inc., 195 F.3d 715, 729-730 (4th Cir.1999) (finding that a municipal corporation may be liable under section 1983 for the actions of a subordinate official if that official in fact exercised final policymaking authority); Spell v. McDaniel, 824 F.2d 1380, 1386 (4th Cir.1987) (stating that “a municipal governing body may not avoid attribution of policy to itself simply by officially retaining unexercised ultimate authority to countermand a policy or to discipline or discharge the policymaker.”).
In this case, the majority’s (and the district court’s) inquiry into who could be deemed a policymaker begins and ends with a determination that the School Board never formally delegated its statutorily-conferred final review authority over disciplinary decisions. Based upon this determination of the absence of formal delegation, and this determination alone, the majority concludes that the School Board cannot be liable for the actions of its subordinate employees. However, such is to pretermit the inquiry. For, as explained, even if a governmental entity with final policymaking authority has technically retained its formal policymaking authority, it may yet be liable if, through a custom or practice of acquiescence in the decisions of its subordinates, it has effectively delegated its authority to those subordinates. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 , 109 S.Ct. 2702 , 105 L.Ed.2d 598
*528 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 123 , 108 S.Ct. 915 , 99 L.Ed.2d 107 (1988). Were it otherwise, a municipality could essentially insulate itself from all liability merely by vesting ultimate review authority in its governing body, while at the same time surrendering all effective authority to its subordinate officials. See Praprotnik, 485 U.S. at 126 , 108 S.Ct. 915 . Most assuredly, this was not congressional intent in enacting section 1983, nor would I so constrict that provision, the very purpose of which is to ensure accountability for official denial of constitutional right.
As even the majority acknowledges, ante at 522, the plaintiffs allege in their complaint that the School Board did delegate the authority to establish disciplinary policy to the individually named defendants, J.A. 139, and that the defendants established policy with respect to Crute’s misconduct, J.A. 142, 144. And, in his affidavit, the Superintendent testified that he in fact is responsible for “developing and implementing policies and procedures for investigating complaints made against teachers by parents and [for] developing and implementing disciplinary procedures.” J.A. 241. Because it can be reasonably inferred from these facts, if not others as well, that the Superintendent, Director of Secondary Education, and Principal have actual policymaking authority over complaint referrals and teacher discipline, J.A. 489-91, 665-69, 681-82, I would hold that the district court erred in granting the defendants summary judgment on the question of the School Board’s susceptibility to suit. Accordingly, I would vacate the district court’s judgment and remand with instructions to provide the plaintiffs an opportunity to prove that final policymak-ing authority on school disciplinary matters in the City of Portsmouth effectively resides in the Superintendent, Director of Secondary Education, School Principal, or some combination of the three. *
II.
Having held that a jury could reasonably conclude that the School Board may permissibly be held liable under section 1983 for the conduct of its individual defendant employees, I would likewise hold that there is a genuine issue of material fact as to whether the defendants acted with deliberate indifference to an obvious risk of constitutional harm.
If school or other officials fail to heed obvious warning signs that would place a reasonable person on notice of the potential for future harmful conduct, their inaction can, as it should, constitute deliberate indifference under section 1983. A jury presented with the evidence of Crute’s past actions could easily conclude that the defendants in this case acted with such deliberate indifference. The plaintiffs allege, J.A. 476-77, that the defendants knew that Crute (1) videotaped a female student on his track team in a deserted and remote location in the school after hours, J.A. 495-96; (2) instructed the student to remove her underpants because, he told her, the uniform did not look good with the underpants showing, J.A. 498; and (3) “zoom[ed] [the camera] in on [the] *529 crotch, [and] zoomed in on [the] rear” of the student, while doing “a lot [of] moaning and groaning,” J.A. 472, 474. Past behavior may be predictive of similar future conduct, and unlike the majority, I categorically reject the argument advanced by the defendants and uncritically accepted by the district court that this reprehensible conduct did not portend the events that eventually followed. But even more importantly, the court, is obliged to reject that argument in adjudicating the defendants’ motion for summary judgment.
Based upon the foreseeability of the harm that actually occurred, and the undisputed evidence that school officials did not discharge Crute for his prior perversity, did not discipline him, did not reprimand him, did not counsel him, J.A. 1295-96, and did not even so much as note the incident in his file, a jury could not only reasonably, but readily, conclude that such official inaction constitutes a complete abdication of an affirmative duty to act— deliberate indifference to foreseeable risk of harm. Such a conclusion would only be more reasonable given that, at the same time that school officials maintained that Crute’s behavior was “not objectionable,” they actually prohibited him from (1) videotaping track members outside of track meets; (2) driving team members home after practice; and (3) attending track meets outside the school district without a female chaperone. J.A. 543. These defendant-imposed limitations on Crute’s interaction with the school’s female students amply refute to the reasonable mind the defendants’ (frankly, incredible) claims that they found nothing objectionable in Crute’s conduct and thus reasonably could not have foreseen that Crute would engage in the substantially similar, albeit more egregious, conduct for which the plaintiffs now seek to hold the School Board liable.
None of the three cases relied upon by the majority for its contrary decision even supports the majority’s decision; and certainly none of them even remotely purports to foreclose the conclusion that is mandated by the plaintiffs’ evidence. In both Jones v. Wellham, 104 F.3d 620 (4th Cir.1997), and Gonzalez v, Ysleta Independent Sch. Dist., 996 F.2d 745 (5th Cir.1993), the policymakers acknowledged that the conduct was inappropriate by punishing the wrongdoers. Here, the school officials took no punitive action against Crute, claiming that his conduct was “not objectionable.” In Doe v. Dallas Independent Sch. Dist., 153 F.3d 211 (5th Cir.1998), the school administrators concluded that the allegations against the teacher were untrue. Here, in contrast, the school officials not only found the allegations against Crute to be true; they failed even to appreciate the patent impropriety of the conduct- — á failure that, in my view, easily satisfies the definition of deliberate indifference.
Accordingly, in addition to holding that the School Board may be held accountable for the actions of its subordinate employees in this case, I would hold that the plaintiffs have presented a jury question on the question of the defendants’ deliberate indifference to the plaintiffs’ daughters’ constitutional rights. Indeed, were it within my role to do so, I would hold as a matter of law on the record before us that the defendants were deliberately indifferent to the rights of these children.
III.
In today’s society, the denial of constitutional right often occurs as a result of bureaucratic paralysis in the face of conduct that would place any reasonable person on notice of the need for preventive action, paralysis frequently attributable to fear of either political offense or personal reprisal. The denial of rights often occurs not so much as a result of the exercise of poor judgment, but as a result of the complete inability to exercise any judgment at all. And this paralysis is followed increasingly by the universal denial of official responsibility once the plainly foreseeable actually occurs. I believe section 1983 was intended to have full force in just such *530 circumstances. I would give the statute that full force and hold that neither the Portsmouth School Board’s statutory retention of final review authority over the school district’s personnel decisions nor its incredible claim that it finds nothing objectionable in Coach Crute’s conduct enables the Board to escape liability for the alleged deliberate indifference of its employees in this case. To hold otherwise is to rob section 1983 of much of its intended deterrent value by allowing municipalities to avoid liability for constitutional deprivation through administrative artifice or bureaucratic incapacitation, respectively.
Even were I not of the view that the plaintiffs have presented a triable issue on whether the individual defendants possess final policymak-ing authority in the area of personnel discipline, I would still vacate the judgment of the district court and remand for trial because I believe that the record contains ample evidence that the School Board actually knew of Crate's past behavior and the complaints against him. For instance, one aggrieved parent testified that "we showed [Crate’s] tape to the people at the School Board,” J.A. 477, and "went down to the School Board office and complained. And what we were told then was that they couldn't do anything about it right now. What they needed to do is get with [the Principal] and get other people in and we just all sat down and talked about it.” J.A. 489. These two statements would be enough, in my view, to create a genuine issue about whether the School Board itself had actual knowledge about Crate's prior activities and propensities, and therefore should be held liable for its own (in)actions in failing to prevent the constitutional deprivation suffered by plaintiffs and their minor daughters.